1. Whether a criminal defendant's protection against double jeopardy is violated is a
question of law over which an appellate court has unlimited review.

2. When a criminal defendant's request for mistrial becomes inevitable because the
prosecution has intentionally subverted the defendant's right to a fair trial, a second
prosecution for the same offense is barred by double jeopardy.

3. Under the facts of this case, double jeopardy does not prevent retrial.

4. Generally issues not raised below may not be raised on appeal; however, an appellate
court may reach a legal theory first asserted on appeal if (1) it involves only a question of
law arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; or (3) the judgment of the trial court was right for the wrong reason.

5. When a second appeal is brought in the same case, the first decision is the settled law of
the case on all questions involved in the first appeal. Reconsideration will not be given to
such questions.

6. Under the facts of this case, neither the law of the case, the mandate rule, nor the
protection against double jeopardy applied on remand to prevent the district court from
modifying its ruling on a pretrial evidentiary matter not challenged or addressed on
appeal.

7. Abuse of discretion is the appropriate standard of review for a district court's ruling on a
motion in limine. The party challenging the ruling bears the burden of showing an abuse
of discretion.

8. When the sufficiency of evidence is challenged in a criminal case, the standard of review
is whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found
the defendant guilty beyond a reasonable doubt.

9. Premeditation means to have thought the matter over beforehand, in other words, to have
formed the design or intent to kill before the act. Although there is no specific time period
required for premeditation, the concept of premeditation requires more than the
instantaneous, intentional act of taking another's life. Several factors may give rise to an
inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of
provocation, (3) the defendant's conduct before and after the killing, (4) threats and
declarations of the defendant before and during the occurrence, and (5) the dealing of
lethal blows after the deceased was felled and rendered helpless. Moreover, premeditation
and deliberation may be inferred from the established circumstances of a case, provided
the inference is a reasonable one.

10. Under the facts of this case, there was sufficient evidence of premeditation.

Ezra J. Ginzburg, of Topeka, argued the cause and was on the briefs for
appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and
Jerome A. Gorman, district
attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: In this direct appeal from his conviction of first-degree murder and aggravated
robbery on retrial, defendant Joseph Dodds Morton alleges that (1) prosecutorial misconduct in
the first trial barred a new trial on a first-degree murder charge; (2) the district court's original
ruling on a motion in limine excluding certain expert testimony should have controlled the issue
on retrial; and (3) the State failed to prove premeditation beyond a reasonable doubt.

Defendant's initial convictions stemmed from a March 2001 robbery of a grocery store at
which he had been employed; during the robbery, Morton shot and killed the store manager. At
Morton's first trial, the jury unanimously found him guilty of first-degree murder and aggravated
robbery, although jurors were unable to agree on whether the underlying first-degree theory was
premeditation or felony murder. On direct appeal, we determined that the prosecutor had
committed reversible misconduct by suggesting that premeditation can take place in an instant;
she had held up her hand in the shape of a gun and pretended to pull its trigger, saying: "One
squeeze of the trigger is all it takes." State v. Morton, 277 Kan. 575, 86 P.3d 535
(2004). At the
time, we declined to find the prosecutor's conduct deliberate. But we agreed that, given some
jurors' reluctance to convict on the basis of premeditation, the misconduct was not harmless
beyond a reasonable doubt. 277 Kan. at 585-86.

On remand, before retrial, Morton filed a motion to dismiss the first-degree murder
charge. He argued that intentional prosecutorial misconduct in his first trial barred a new
proceeding on that charge under the Double Jeopardy Clause. See U.S. Const. Amend. 5; U.S.
Const. Amend. 14; Kan. Const. Bill of Rights, § 10. The district court rejected the
defendant's
motion, noting that our opinion clearly contemplated a new trial on both the first-degree murder
and aggravated robbery counts.

Morton also sought on remand to enforce an in limine order entered before his first trial.
That order had prevented the State from presenting the testimony of Dr. William Newhouse, a
ballistics expert who intended to testify that the fatal shot was fired from 15 inches to 18 inches
away. At a preliminary hearing before the first trial, the district court granted a defense motion in
limine because the State had produced Newhouse's report just a few days before trial was
scheduled to begin. At that point, Morton was unable to prepare adequately for trial regarding the
expert's findings; he was incapable of retaining his own competing expert; and he would have
been prejudiced had the testimony been permitted. During the first trial, the coroner, Dr. Erik
Mitchell, testified that the fatal shot was fired from "intermediate range," meaning from between
several inches and 3 feet away. He also testified that the path of the bullet through the victim's
body was roughly horizontal to the floor.

On remand, defendant argued that the law of the case restricted the district court from
reconsidering its previous ruling on the limine motion. After a hearing, the district court reversed
its earlier position and permitted Newhouse to testify in the new trial. The fear of prejudice from
late disclosure of Newhouse's report had dissipated during the time it took Morton to appeal and
obtain reversal and remand. The district court also concluded that the law of the case doctrine
applied only to preclude relitigation of issues decided on appeal. The suppression of the
Newhouse testimony at the first trial was not raised on Morton's appeal.

At the second trial, the jury again unanimously found defendant guilty of first-degree
murder and aggravated robbery. Again, jurors could not agree on the underlying theory on the
murder charge. Defendant received the same sentence as he had received after his first trial.

Prosecutorial Misconduct as a Bar to Retrial

The Double Jeopardy Clause of the United States Constitution protects against (1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense. See,
e.g., State v.
Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006) (citing NorthCarolina v. Pearce, 395 U.S.
711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 [1969], overruled on other grounds Alabama v.
Smith,
490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 [1989]). We have previously recognized that
the language of the Fifth Amendment to the United States Constitution guarantees no greater
double jeopardy protection to an accused than does § 10 of the Kansas Constitution Bill of
Rights; the provisions are coextensive. See Schoonover, 281 Kan. at 474; State
v. Thompkins,
271 Kan. 324, 336-37, 21 P.3d 997 (2001); State v. Williams, 268 Kan. 1, 6, 988
P.2d 722
(1999).

The Kansas Legislature attempted to codify the constitutional guarantees against double
jeopardy in K.S.A. 21-3107 and K.S.A. 21-3108. Thompkins, 271 Kan. at 336-37;
Williams, 268
Kan. at 6-7. K.S.A. 21-3108 provides, in pertinent part, that a second prosecution is not barred if
a subsequent proceeding resulted in the invalidation, setting aside, reversal, or vacating of the
conviction, unless the defendant was adjudged not guilty.

Whether a particular criminal defendant's protection against double jeopardy was violated
is a question of law over which we have unlimited review. See Thompkins, 271 Kan.
at 337.

Generally, in Kansas, "[a]n accused waives his right to plead double jeopardy when after
conviction he applies for and is granted a new trial." State v. Bloomer, 197 Kan. 668,
675, 421
P.2d 58 (1966), cert. denied 387 U.S. 911 (1967). Further, "when a new trial is
granted on the
motion of the defendant in a criminal prosecution, the granting of the same places the party
accused in the same position as if no trial had been had. [Citations omitted.]" State v.
Osburn,
216 Kan. 638, 641-42, 533 P.2d 1229 (1975).

There is, however, a recognized exception to this general rule for certain egregious
prosecutorial misconduct, under the authority of Oregon v. Kennedy, 456 U.S. 667,
72 L. Ed. 2d
416, 102 S. Ct. 2083 (1982).

In that case, Bruce Kennedy had been charged with theft. A series of sustained objections
prevented the prosecutor from eliciting certain testimony. The prosecutor nevertheless returned to
the well one more time. He asked the witness if the reason he had never done business with the
defendant was the defendant's status as a crook. Defendant's resulting motion for a mistrial was
granted. After a second trial led to his conviction, Kennedy persuaded the Oregon Court of
Appeals that double jeopardy should have barred the retrial because the prosecutor's conduct in
the first trial was "overreaching." 456 U.S. at 668.

The United States Supreme Court reversed the Oregon Court of Appeals and remanded
for further proceedings, but it noted that double jeopardy would bar retrial if the prosecutor had
intentionally provoked the defendant's request for mistrial. 456 U.S. at 676-79.

In Cady, the defendant argued to this court that Kennedy should
be extended to cover
situations when a defendant obtains reversal of a conviction because of prosecutorial misconduct.
254 Kan. at 399. We declined to do so and remarked on the limits of the Kennedy
rule in this
way:

"Kennedy applies to situations where the defendant's request for
mistrial was inevitable
because the prosecution subverted the defendant's right to a fair trial. . . .

". . . [A] defendant should be allowed to freely choose whether he or she should
request a
mistrial and forego the right to have the matter decided by the first trier of fact. Where the
prosecutor seeks to force the defendant into the choice, the choice is not freely made, and the
prosecution has subverted the defendant's rights protected by the Double Jeopardy Clause of the
Constitution." Cady, 254 Kan. at 399-400.

Our subsequent discussions of Kennedy have consistently enforced these
limits. Without
prosecutorial intent to provoke the defendant into moving for a mistrial, the Kennedy
rule does
not apply. See Williams, 268 Kan. at 7 ("Intentional prosecutorial conduct motivated
by a desire
to obtain a conviction but not by a desire to provoke the defendant into moving for a mistrial may
be grounds for a mistrial but it does not preclude retrial of the case."); Muck, 262
Kan. at 470
(quoting Kennedy, 456 U.S. at 675-76) ("'Prosecutorial conduct that might be
viewed as
harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, . . . .
does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded
by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended
to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in aborting the first on his own motion.'");
McClanahan, 259 Kan. at 102 ("In evaluating [misconduct], the question remains
whether the
prosecutor's intentional attempt to introduce inadmissible evidence substantially prejudiced the
defendant's right to a fair trial and required the defendant to ask for a mistrial. . . . [I]f the
defendant was forced into requesting a mistrial by the prosecutor's intentional misconduct, retrial
would be barred by K.S.A. 21-3108(1)(c) and by the Double Jeopardy Clause of the Kansas and
United States Constitutions"). We have yet to apply Kennedy to bar retrial on double
jeopardy
grounds, although we have remanded for a supplemental finding of fact "on the issue of whether
or not the actions of the prosecutor prompting the mistrial motion were done with the intention of
goading [defendant] into requesting a mistrial." Muck, 262 Kan. at 470 (citing
State v.
Rademacher, 433 N.W.2d 754, 757 [Iowa 1988], for a similar remand disposition).

Defendant urges us to apply Kennedy here because in his view, the
prosecutor committed
deliberate misconduct during the first trial in order to get a new trial in which she could introduce
Newhouse's previously excluded testimony. We see no support in the record for this position.
There is no indication that the prosecutor intended to provoke defendant into moving for mistrial.
Indeed, there was little motivation for her to do so. The testimony of the coroner already gave
rise to a reasonable inference of a purposeful killing, rather than the random firing that defendant
asserted. We therefore decline defendant's invitation to liberalize application of the
Kennedy rule
to fit the facts of this case. Kennedy requires something more than misconduct, even
intentional
and reversible misconduct, in order to bar retrial. It requires that the prosecutor intended to
provoke a mistrial, to goad a defendant into sacrificing his or her choice to live with the outcome
from the first jury. This outcome is consistent with our opinion on Morton's first appeal. We
concluded then that the evidence of Morton's premeditation was not "weak," but the jury's
apparent hesitation on that issue made the prosecutor's misstatement of the law significant
enough to require reversal. Morton, 277 Kan. at 585. Yet we observed that the
statement did not
appear to be deliberate or the product of ill will. Furthermore, it was tempered by the prosecutor's
correct definition of controlling law in her multiple references to the jury instructions.
Morton,
277 Kan. at 585. Under these circumstances, Kennedy did not bar retrial on double
jeopardy
grounds.

Reconsideration of Motion in Limine

In his brief on this appeal, the defendant cites the law of the case, the mandate rule, the
protection against double jeopardy, and a pretrial motion to enforce the previous limine order in
support of his position on this issue. However, the district court's decision was based solely on
the doctrine of the law of the case. Generally issues not raised below may not be raised on
appeal, State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006), but this court may
reach a legal
theory first asserted on appeal if (1) it involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary
to serve the ends of justice or to prevent denial of fundamental rights; or (3) the judgment of the
trial court was right for the wrong reason. State v. Schroeder, 279 Kan. 104, 116,
105 P.3d 1237
(2005). We choose to address the merits of each of defendant's arguments on the chance that
refusal to do so would endanger a fundamental right.

The law of the case doctrine has long been applied in Kansas and is generally described in
the following manner:

"'The doctrine of the law of the case is not an inexorable command, or a
constitutional
requirement, but is, rather, a discretionary policy which expresses the practice of the courts
generally to refuse to reopen a matter already decided, without limiting their power to do so. This
rule of practice promotes the finality and efficiency of the judicial process. The law of the case is
applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same
litigation, to afford one opportunity for argument and decision of the matter at issue, and to
assure
the obedience of lower courts to the decisions of appellate courts.'" State v. Collier,
263 Kan. 629,
631, 952 P.2d 1326 (1998) (quoting 5 Am. Jur. 2d, Appellate Review § 605).

The doctrine was first stated by the United States Supreme Court in Himely v.
Rose, 9
U.S. (5 Cranch) 313, 3 L. Ed. 111 (1809) (court will not revisit issues finally decided by it in
previous appeal), and Skillern's Ex'rs v. May's Ex'rs, 10 U.S. (6 Cranch) 267, 3 L.
Ed. 220 (1810)
(once issues finally decided, lower court has no choice but to follow mandate). Kansas adopted
the doctrine in Headley v. Challiss, 15 Kan. 602, 605-06 (1875); and the cases
stating the rule
since are "legion in number." See Collier, 263 Kan. at 632. Under the rule, it is clear
that, when a
second trial or appeal is pursued in a case, the first decision is the settled law of the case on all
questions addressed in a first appeal. Reconsideration will not be given to such questions.
Waddell v. Woods, 160 Kan. 481, Syl. ¶ 3, 163 P.2d 348 (1945).

The problem with applying the doctrine to prevent the district court's reconsideration of
the defense motion in limine regarding Newhouse's testimony is that the issue of that testimony
never arose on Morton's first appeal. In such a situation, the district court had the discretion, and
perhaps even the duty, to consider the issue anew on remand.

Likewise, the mandate rule, codified in K.S.A. 60-2106(c) and stating that the Supreme
Court's mandate and opinion "shall be controlling in the conduct of any further proceedings
necessary in the district court," is inapplicable. Collier, 263 Kan. at 635 (discussing
K.S.A. 60-2106 and the "mandate rule"); Duffitt & Ramsey v. Crozier, Judge,
30 Kan. 150, Syl. ¶ 1, 1 Pac.
69 (1883). The admissibility of Newhouse's testimony was not addressed in Morton's first appeal
or in the mandate to which it gave rise. Thus there was nothing to "control" the conduct of the
district court on this issue.

Morton can get no farther with his argument that the State acquiesced in the district
court's original ruling by failing to cross-appeal or his argument that the State should be
precluded from benefitting from admission of Newhouse's testimony at a retrial necessitated by
prosecutorial misconduct. The State had no duty to cross-appeal the original motion in limine
ruling, and we have already fully discussed and rejected defendant's assertion of double jeopardy
protection.

Having established that neither law of the case, the mandate rule, nor double jeopardy
required the district judge to exclude Newhouse's testimony on retrial, we briefly address the
merits of the renewed motion in limine filed by the defense. Our first inquiry is relevance. "'Once
relevance is established, evidentiary rules governing admission and exclusion may be applied
either as a matter of law or in the exercise of the district judge's discretion, depending on the
contours of the rule in question.'" State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493
(2005)
(quoting State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 [2004]). Abuse of discretion
is the
appropriate standard of review for a district court's ruling on such a motion. The party
challenging the ruling bears the burden of showing an abuse of discretion. State v.
Holmes, 278
Kan. 603, 623, 102 P.3d 406 (2004); State v. Abu Fakher, 274 Kan. 584, 594, 56
P.3d 166
(2002).

There is no doubt that Newhouse's testimony concerning the distance from the muzzle of
the gun to the victim was relevant. The shorter the distance, the less likely members of the jury
would accept defendant's version of what happened, i.e., that he fired a shot merely
to scare the
victim, without looking where the gun was pointing. Moreover, the testimony was admissible
under K.S.A. 60-456(b), which permits expert testimony "in the form of opinions or inferences . .
. as the judge finds are (1) based on facts or data perceived by or personally known or made
known to the witness at the hearing and (2) within the scope of the special knowledge, skill,
experience or training possessed by the witness." Finally, the original reason the district court had
excluded the testimony–to avoid the prejudice of unfair surprise–no longer
applied. Under these
circumstances, we conclude that there was no abuse of discretion in the district court's decision to
permit the Newhouse testimony on retrial.

Sufficiency of Premeditation Evidence

Our standard of review on sufficiency claims is often recited:

"'When the sufficiency of evidence is challenged in a criminal case, the standard of
review is
whether, after review of all the evidence, viewed in the light most favorable to the prosecution,
the
appellate court is convinced that a rational factfinder could have found the defendant guilty
beyond a reasonable doubt.'" State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175
(2005)
(quoting State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 [2003]).

Morton raised this argument in his first appeal, and we decided it against him,
determining there was "ample evidence to support premeditation." See Morton, 277
Kan. at 583.

"'Premeditation means to have thought the matter over beforehand, in other words, to
have formed the design or intent to kill before the act. Although there is no specific time period
required for premeditation, the concept of premeditation requires more than the instantaneous,
intentional act of taking another's life.'" State v. Martis, 277 Kan. 267, 301, 83 P.3d
1216 (2004)
(quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]). Several factors may
give rise to
an inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of
provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations
of the defendant before and during the occurrence, and (5) the dealing of lethal blows after the
deceased was felled and rendered helpless. State v. Scott, 271 Kan. 103, 109, 21
P.3d 516, cert.
denied 534 U.S. 1047 (2001). Moreover, premeditation and deliberation may be inferred
from the
established circumstances of a case, provided the inference is a reasonable one. State v.
Scott,
271 Kan. at 108 cf.; see also State v. Jones 279 Kan. 395, 404, 109 P.3d
1158 (2005).

There was as much or more evidence of premeditation on Morton's retrial. It established
that Morton decided ahead of time to rob the store. He stole a gun from his mother; he prepared
an excuse for his presence at the store in the event someone asked why he was there; he parked
across the street and observed the traffic in the parking lot, timing his entry so that he would be
alone with the manager. After he entered the store, he left and went back to his car, where he sat
for several minutes thinking through his plan and again deciding to proceed. He entered the store
a second time, followed the manager to the office, took the money, and shot the store manager in
the face. The jury heard that the shot was fired from 15 inches to 18 inches away from the victim.
Jurors also knew Morton heard the victim fall but left the store. They knew he got in his car but
returned a third time to steal or destroy security cameras and videotape. Later that evening,
Morton bought drugs and played pool. Still later, he offered to pay a friend to destroy the security
videotapes. He then fled the state. Morton, 277 Kan. at 582-83. We still have no
hesitation in
holding there was ample evidence to support premeditation.